What Happened on Remand: Appeals Court Cuts No Slack to Tyshawn Barker.

Then 15 year old Tyshawn Barker was taken into custody by police near midnight for questioning in regard to two fatal shootings. Another suspect had implicated Barker in those crimes during questioning earlier in the evening.

The police detectives electronically recorded Barker’s interrogation. Before questioning Barker, the police read him his Miranda rights. Barker said he understood what the detective had read, and he signed the notification-of-rights form.

The detectives then specifically asked Barker if he had heard of Miranda rights before, and his answer was, “no sir, my first time.” In response to another police question, Barker agreed that he had “seen it on t.v.” The detectives continued their questioning without asking whether Barker wanted to continue or to speak with a lawyer. Barker implicated himself in both shootings.

The next evening the detectives questioned Barker again, and when one of them told Barker he was going to re-read Barker his rights, Barker said, “I seen an attorney-an attorney, whatever that is…And she told me if you all to come up here just to ask for an attorney.” But when asked if he wanted an attorney, Barker told the detectives just to go on. They did, and Barker identified a co-defendant from a photograph.

Barker was charged as a juvenile with two counts of aggravated murder and related offenses. The juvenile judge ordered an amenability evaluation. The evaluating psychologist found Barker to be mildly mentally retarded and of borderline intelligence. He placed his academic ability between third and fifth grade. The juvenile judge ordered the case transferred to adult court.

In the common pleas court, Barker filed a motion to suppress his statements to the detectives, arguing that he had not voluntarily, knowingly and intelligently waived his Miranda rights, and that he had not given his statements voluntarily. The recorded statements were admitted into evidence at the hearing. The court denied Barker’s motion to suppress. Barker subsequently pled no contest to two counts of aggravated murder for each victim, two counts of aggravated robbery, and three counts of tampering with evidence, all with firearms specifications. He was found guilty and sentenced accordingly.

First Appeal

On appeal, Barker initially challenged only his transfer to adult court, but filed a supplemental assignment of error challenging the ruling on the suppression motion.

The appeals court unanimously upheld Barker’s conviction. In upholding the trial court’s decision denying Barker’s motion to suppress, the First District Court of Appeals applied R.C. 2933.81(B) as a basis for its decision that Barker’s statements were voluntary. Under that statute statements made by a person suspected of certain offenses including aggravated murder are presumed to be voluntary if electronically recorded. The appeals court also found that Barker had voluntarily, knowingly and intelligently waived his Miranda rights.

Supreme Court Reverses Court of Appeals

On April 26, 2016, the Supreme Court of Ohio handed down a merit decision in the case. SeeSlip Opinion No. 2016-Ohio-2708. In a 5-2 opinion written by Justice French, joined by Chief Justice O’Connor and Justices Lanzinger, Pfeifer, and O’Neill, the court held that R.C. 2933.81(B) is unconstitutional as applied to juveniles, and that the presumption in that statute that electronically recorded statements made during custodial interrogation are voluntary does not affect the analysis of whether a suspect validly waived his Miranda rights, which is a separate issue. Justice O’Donnell dissented, joined by Justice Kennedy.

The case was reversed and sent back to the court of appeals to consider the issue of whether Barker’s statements to the police were voluntary without relying on R.C. 2933.81(B), and also to determine whether Barker knowingly, intelligently, and voluntarily waived his Miranda rights. The high court reminded the appeals court that the state had the burden of proving both (the statute, declared unconstitutional as applied to juveniles, places the burden of proving the statements were voluntary on the accused).

On remand, in a unanimous decision the appeals court again held that Barker knowingly, intelligently and voluntarily waived his Miranda rights and that his statements to the police were voluntary.

Waiver of Miranda Rights

The determination of whether a defendant has waived his Miranda rights is made using a totality of the circumstances test. The appeals court acknowledges in its decision that courts are uneasy about custodial confessions obtained from juveniles, but notes that despite this unease, neither the U.S. Supreme Court nor the Supreme Court of Ohio has established special rules for police questioning of juveniles.

The totality of the circumstances test includes an evaluation of the juvenile’s age, experience, education, background, and intelligence, and whether the juvenile has the capacity to understand the warnings given to him, the nature of his rights, and the consequences of waiving them. The appeals court notes in a footnote that Ohio has not joined the 14 states that invalidate a juvenile’s waiver without additional safeguards such as the presence of a parent during questioning. In Barker, Justice French wrote that access to advice from a parent or guardian is a factor to be considered in the totality of the circumstances. On remand, the appeals court didn’t seem to give it much weight.

Totality of the Circumstances in Barker’s Case

The appeals court reviewed the interchange between the detectives and Barker, concluding from the interchange, which was electronically recorded, that he clearly understood the rights that were read to him.

Barker argued that the detectives treated the reading of his rights as a mere formality, that given his low intelligence level he was unable to understand his rights, that the interview shows he did not even understand what an attorney was, and that no parent was present when he was questioned. The court rejected all these arguments, finding that the explanation of rights was clear and straightforward, that the amenability report prepared for the bindover hearing was not presented to the trial court, and even if it were, nothing in it indicated Barker was incapable of understanding his rights, that despite his comments about an attorney, Barker had two prior juvenile adjudications, which gave him a certain “savviness” that contradicted what he said about not knowing what a lawyer was. Further, Barker specifically told police he wanted to continue the interview without a lawyer present. Finally, although acknowledging it would be a better practice to have a parent present during questioning, the absence of a parent during questioning did not change the court’s conclusion that Barker knowingly, voluntarily and intelligently waived his rights.

Barker’s Statements were Voluntary

Even if a suspect waives his Miranda rights, his statements to police officers still can be found to have been made involuntarily. Noting that the Ohio high court had instructed the appeals court in its remand instruction to consider this issue again based on a totality of the circumstances (as opposed to earlier case law suggesting the totality of the circumstances need not be assessed unless there was a finding of police coercion, which the appeals court found clearly not present here) the appeals court proceeded to do so. Since the same test is being used as with the Miranda waiver issue, the analysis is similar.

Barker again emphasized his age, low intelligence, and lack of opportunity to consult with a parent, and his confusion about what a lawyer was. Just as the appeals court rejected this argument with the Miranda waiver, it rejected this argument in the context of whether his statements to the police were voluntary.

The appeals court placed great weight on what it saw on the recorded interview. The appeals court found there was no evidence whatsoever that the questioning was coerced. Although the questioning occurred late at night, with no parent present, the appeals court concluded that the interview was not overly long, Barker was given breaks and an offer of food and drink. He was not threatened or mistreated.

“After examining the totality of the circumstances, we cannot conclude that Barker’s statement resulted from coercion on the part of the detectives. The record supports a finding that Barker’s statement was voluntary,” wrote the court.

Bottom Line

The trial court properly denied Barker’s motion to suppress.

Concluding Observations

This opinion was authored by Judge Pat DeWine, who also authored the earlier decision in Barker. De Wine is presently a candidate for justice of the Supreme Court of Ohio, which has had a core of justices who have generally been sympathetic to the rights of juveniles, two of whom are now retiring. I find it interesting that Ohio has not joined the 14 states that invalidate a juvenile’s waiver without additional safeguards such as the presence of a parent during questioning, and wonder if the Ohio high court will take this case in on that issue. I also wonder whether DeWine, if elected, will side with Justice O’Donnell on issues involving juveniles. I have written on many occasions that Justice O’Donnell is generally unsympathetic to the rights of juvenile offenders, as is this appellate decision. O’Donnell dissented in the Supreme Court decision in Barker, although mostly on procedural grounds.

Joining Judge DeWine in the unanimous appellate decision in Barker II was Judge Sylvia Hendon, who was juvenile court judge for many years in Hamilton County before being elected to the appellate court. Judge Russell Mock was the third judge on the panel.

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Marianna Brown Bettman

Marianna Brown Bettman is Distinguished Teaching Professor and Professor of Practice Emerita at the University of Cincinnati College of Law, where she taught torts, legal ethics, and a seminar on the Supreme Court of Ohio. She is also a former Ohio state court of appeals judge. Professor Bettman is a frequent presenter on Supreme Court of Ohio cases at Continuing Legal and Judicial Education seminars and conferences including the Ohio Judicial Conference. She also provides appellate consulting services to attorneys.